Jonathan Edwards; Carla Edwards v. Skylift, Inc.

United States Court of Appeals
For the Eighth Circuit
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No. 21-2984
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Jonathan Edwards; Carla Edwards
lllllllllllllllllllllPlaintiffs - Appellants
v.
Skylift, Inc.
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: June 14, 2022
Filed: July 12, 2022
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Before LOKEN, ARNOLD, and KELLY, Circuit Judges.
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ARNOLD, Circuit Judge.
After Jonathan Edwards was injured by a machine that Skylift, Inc.,
manufactured and sold, he sued Skylift claiming that the machine was defective and
unreasonably dangerous and that Skylift negligently designed it. The district court1
1The Honorable Billy Roy Wilson, United States District Judge for the Eastern
District of Arkansas.

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rejected these claims and granted summary judgment to Skylift—a determination that
Edwards appeals. Reviewing his contentions de novo, see Apex Oil Co. v. Jones
Stephens Corp., 881 F.3d 658, 660 (8th Cir. 2018), we affirm.
The accident occurred while Edwards was employed by Entergy Arkansas,
LLC. On the night of the accident, he was part of a crew of employees that was
cleaning storm debris in a Little Rock neighborhood. To assist with the cleanup, the
crew used a digger derrick that Skylift manufactured in 2010 and later sold. The
district court found, and Edwards does not dispute the finding, that this particular
model was designed to be narrow enough to travel through tight spots, such as down
small alleyways and trails or through backyard gates. The machine's top-heaviness
can render it unstable in certain circumstances.
The machine had a boom that could be raised and rotated. To ensure that it
remained stable while the boom was in operation, the machine featured an interlock
system that prevented the user from operating the boom unless the user deployed the
machine's stabilizing outriggers. But the user could override the interlock system with
the flip of a switch located on the machine. Skylift's expert testified that the override
switch isn't intended for operator use in the field but is installed so that certain parts
of the machine can be accessed during maintenance.
Skylift warned users not to operate the boom without the outriggers deployed.
The machine's operations manual said, in red capital letters sandwiched between two
red "WARNING" alerts, that the "boom must remain in stowed position until
outriggers are deployed." Meanwhile, Entergy gave its employees a training manual
informing them that "outriggers shall be used to level and stabilize the vehicle before
the boom is lifted." It also trained its employees on the use of diggers like the one
here and on the proper use of outriggers, specifically instructing them that
"[o]utriggers shall always be used."
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At the time of the accident, Edwards was rigging a downed pole to the digger
derrick's boom while another Entergy employee, Jeremy Gray, operated the digger
derrick. Gray intentionally flipped the override switch and moved the boom without
first deploying the outriggers. The machine became unstable and tipped over on top
of Edwards, seriously injuring him.
Edwards claims that the machine contained design defects that rendered it
unreasonably dangerous. More specifically, he asserts that the machine's override
switch should have been accessible only by a key that should not be taken into the
field, or that the machine should have sounded alarms or flashed light to warn
bystanders that a user had flipped the override switch.
Arkansas substantive law applies in this diversity case. See Apex Oil, 881 F.3d
at 660. Under that law, the manufacturer or seller of a product is strictly liable for
damages if it supplies a product that is "in a defective condition that rendered it
unreasonably dangerous," and the defective condition proximately causes harm to a
person or to property. See Ark. Code Ann. § 16-116-101(a). After determining that
the machine was not defective, the court also held that the machine was not
unreasonably dangerous because Edwards, Gray, and the rest of the crew knew the
hazards of operating the machine without deploying the outriggers. Edwards does not
dispute that the crew knew of this danger, and he bears the burden of proving that the
machine was unreasonably dangerous. See Pilcher v. Suttle Equip. Co., 223 S.W.3d
789, 794 (Ark. 2006).
We agree with the court's conclusion that Edwards has not produced sufficient
evidence to support a finding that the digger derrick was unreasonably dangerous as
Arkansas defines that phrase, and so we need not decide whether the machine's design
was defective. A product is unreasonably dangerous under Arkansas law if it is
"dangerous to an extent beyond that which would be contemplated by the ordinary
and reasonable buyer, consumer, or user who acquires or uses the product, assuming
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the ordinary knowledge of the community or of similar buyers, users, or consumers
as to its characteristics, propensities, risks, dangers, and proper and improper uses."
See Ark. Code. Ann. § 16-116-202(7)(A); see also Apex Oil, 881 F.3d at 661. The
definition goes on to emphasize the importance of a product user's actual knowledge,
and requires a factfinder to consider "any special knowledge, training, or experience
possessed by the particular buyer, user, or consumer or which he or she was required
to possess." See Ark. Code Ann. § 16-116-202(7)(A). According to Arkansas courts,
this means that where the record reveals that "the actual plaintiff sitting in the
courtroom" subjectively knew that the use in question was dangerous, then it is the
plaintiff's subjective knowledge, rather than that of an ordinary user, that controls. See
Mason v. Mitcham, 382 S.W.3d 717, 720 (Ark. Ct. App. 2011) (citing Berkeley Pump
Co. v. Reed-Joseph Land Co., 653 S.W.2d 128, 133 (Ark. 1983)).
The record here shows that Edwards, Gray, and the rest of the cleanup crew all
knew that operating the machine without deploying the outriggers was dangerous. Yet
Gray flipped the override switch without doing so. Given this knowledge of the
danger at issue, we agree with the district court that the product was not unreasonably
dangerous, i.e., "dangerous to an extent beyond that which" was actually
contemplated by the machine's users.
Edwards does little to confront this glaring deficiency in his claim, focusing
instead on the feasibility of adding certain features to the machine that he says would
have prevented the accident. While that approach may work in other jurisdictions, it
is not at home in a jurisdiction like Arkansas whose relevant statute adopts a so-called
"consumer expectations" standard, see Mason, 382 S.W.3d at 720; see also Robert
F. Thompson, The Arkansas Products Liability Statute: What Does "Unreasonably
Dangerous" Mean in Arkansas?, 50 Ark. L. Rev. 663, 666 (1998), a standard taken
"substantially verbatim" from the Restatement (Second) of Torts § 402A. See
Berkeley Pump, 653 S.W.2d at 131. And under that standard, only dangers beyond
the contemplation of the buyers and users will render a product unreasonably
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dangerous. Since Edwards and the rest of the crew knew the danger of operating the
digger derrick's boom without first deploying the outriggers, under Arkansas law, the
machine wasn't unreasonably dangerous.
Edwards resists this conclusion with one argument that warrants additional
discussion. He says that Skylift is arguing that the machine's danger was open and
obvious but that Arkansas courts have expressly declined to adopt an open-and-
obvious rule that would permit manufacturers and sellers to supply obviously
defective and unreasonably dangerous products. See Forrest City Mach. Works, Inc.
v. Aderhold, 616 S.W.2d 720, 722–23 (Ark. 1981). The district court did not have an
opportunity to address this argument because Edwards did not raise it until his reply
brief to our court. In fact, in his response to Skylift's motion for summary judgment
before the district court, he actually argued that the override switch "does not rise to
the level of open and obvious."
Edwards misstates Skylift's position. Skylift simply maintains that Edwards
knew the risks the machine posed and so he failed to make out a case under the
statute. If Edwards is intimating that our conclusion in Skylift's favor necessarily
implies that we are endorsing a discredited defense, he is off the mark. Our
conclusion rests squarely on Edwards's actual knowledge and owes nothing to an
inference that Edwards knew or should have known of a danger because it was open
and obvious, cf. Lockley v. Deere & Co., 933 F.2d 1378, 1382 (8th Cir. 1991); see
also Larson Mach., Inc. v. Wallace, 600 S.W.2d 1, 8 (Ark. 1980), and in fact it wasn't
as Edwards admits. The Arkansas courts, as do we for that matter, routinely apply the
plain statutory language and hold that defendants are entitled to judgment when a
plaintiff fails to show that a product was not unreasonably dangerous given the
knowledge of the actual plaintiff or ordinary user of the product. That is all we do
here. See, e.g., Apex Oil, 881 F.3d at 661; Mason, 382 S.W.3d at 720; Purina Mills,
Inc. v. Askins, 875 S.W.2d 843, 847 (Ark. 1994); Berkeley Pump, 653 S.W.2d at 133.
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We now turn to Edwards's claim that Skylift negligently designed the machine.
In his complaint Edwards asserted that Skylift was negligent both in its design of the
machine and in failing to warn of its dangers. But Edwards clarifies on appeal that he
is not pursuing a failure-to-warn claim "related to any operator's manuals or stickers
on the machine itself." He is instead maintaining that the machine's failure to include
audio or visual warnings are shortcomings in the machine's design. We therefore take
him to be raising a single negligence claim based on the machine's design rather than
asserting two separate negligence claims, one based on design and the other based on
a failure to warn.
Arkansas recognizes that a plaintiff may assert both strict-liability and
negligence claims in a product-liability action. See W.M. Bashlin Co. v. Smith, 643
S.W.2d 526, 529 (Ark. 1982). The Arkansas Supreme Court has explained that
negligence occurs when "the defendant has failed to use the care that a reasonably
careful person would use under circumstances similar to those shown by the evidence
in the case." See Wagner v. Gen. Motors Corp., 258 S.W.3d 749, 754 (Ark. 2007). To
demonstrate negligence, the plaintiff must show that the defendant breached a legal
duty to the plaintiff, and that the breach proximately causes the plaintiff harm. See id.
at 753–54.
No one disputes that Gray used the digger derrick improperly and that the
machine was safe when properly used. It is also undisputed that Skylift adequately
warned against using the machine in the unsafe manner that it was used here, and that
if Skylift's instructions had been heeded, the accident would not have happened.
Edwards admits that the machine was intended to be used by, and actually was used
by, people who had been trained to use the machine properly and who actually knew
that using the machine without its outriggers was dangerous. And Edwards does not
convincingly argue that the machine fell short of contemporary industry standards;
in fact, Edwards's expert may well have admitted they satisfied those standards. As
the Arkansas Supreme Court once explained, "[r]ealization after an accident that a
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machine might have been manufactured in a different way to possibly eliminate the
accident should not bear on the determination of negligence." See Verson Allsteel
Press Co. v. Garner, 547 S.W.2d 411, 415 (Ark. 1977). We think a similar hindsight
bias is at work here in Edwards's argument. We therefore agree with the district court
that no reasonable jury could find that Skylift negligently designed the digger derrick.
Finally, Edwards challenges the district court's failure to consider an affidavit
he submitted and an affidavit submitted by his expert on the ground that those
affidavits were shams. "An affidavit is a sham affidavit if it contradicts prior
testimony or is a sudden and unexplained revision of testimony that creates an issue
of fact where none existed before," but this does not include an affidavit that "merely
explains portions of a prior deposition that may have been unclear." See Button v.
Dakota, Minn. & E. R.R. Corp., 963 F.3d 824, 830 (8th Cir. 2020). Reviewing the
affidavits ourselves and the parties' arguments about them, we fail to see how, even
if the court did err (a matter we do not decide), those affidavits would affect the
outcome of this case. We see nothing in them that calls into question our
determinations that the machine was not unreasonably dangerous under Arkansas law
or that Skylift did not negligently design it, and so we do not think reversal is
warranted.
Affirmed.
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